CMNT_TITLE

Abolition of Forced Labour Convention, 1957 (No. 105) - Kazakhstan (RATIFICATION: 2001)

Other comments on C105

Observation

Direct Request

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see Article 1(d) below, on penalties for participating in strikes), as well as on the basis of the information at its disposal in 2019.

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. 1. Code of Administrative Offences. The Committee previously noted that, according to section 322 of the Code of Administrative Offences of 1984, administrative arrest involved an obligation to perform labour under the supervision and control of local authorities. It noted that, under section 488 of the new Code of Administrative Offence of 5 July 2014, as amended in 2015, the violation of the Kazakh law on the procedure for organizing and holding peaceful meetings, rallies, marches, pickets and demonstrations is punishable with a fine or administrative arrest for a term of up to 15 days. The Government indicated that in 2015, 109 actions were held in which 4,719 people participated and 75 of those actions were unauthorized. The Government stressed that only 19 people who participated in unauthorized action were sentenced to administrative penalties under section 488 of the Code of Administrative Offences of 2014. The Committee however noted that the Special Rapporteur on the rights to freedom of peaceful assembly and of association expressed his concern that participants in unauthorized assemblies seemed to have been increasingly subjected to intimidation, imprisonment and administrative sanctions. The Committee requested the Government to ensure that persons who peacefully assemble were not subject to penalties involving compulsory labour.

The Committee notes the Government’s indication that, in the event of a refusal to stop an unauthorized meeting, rally, march, picket or demonstration, the internal affairs authorities take the necessary measures to stop the act being committed, to ensure public safety. It also notes the information in the compilation report prepared by the Office of the High Commissioner for Human Rights (OHCHR), for the Universal Periodic Review of November 2019, that on 9 and 10 June 2019, at least 1,000 arrests of peaceful protesters had reportedly taken place in Nur-Sultan, Almaty and Shymkent, with 550 individuals being charged and penalized for “participating in an unauthorized assembly” under the Code of Administrative Offences. The report also indicates that mass arrests, detentions and criminal prosecutions had followed demonstrations over proposed land reforms across the country, in 2016 (A/HRC/WG.6/34/KAZ/2, paragraph 28). The Committee requests the Government to take the necessary measures to ensure that persons who peacefully assemble are not subject to penalties involving compulsory labour and to provide information in this regard. The Committee also requests the Government to indicate the provisions governing the sentence of administrative arrest, including, if any, the voluntary nature of work under administrative arrest.

2. Criminal Code. The Committee notes that, under a certain number of provisions of the Criminal Code of 2015, sanctions involving compulsory labour (such as correctional work, community service, restriction of freedom, deprivation of liberty) may be imposed for offences related to civil rights and political freedoms on persons holding or expressing political views or views ideologically opposed to the established political, social or economic system. The provisions in question are as follows:

-sections 130 and 411, concerning defamation of another person or of public officials;
-sections 131, 376 and 378, which penalize insult of another person or of public officials;
-section 182, which establishes penalties of deprivation of liberty for the creation, management of and participation in extremist groups;
-section 274, concerning the spreading of false information;
-section 372, concerning the desecration of state symbols;
-section 373, which establishes penalties for infringing upon the honour and dignity of the president; and
-section 405, punishing the organization of and participation in activities of social or religious associations or other organizations after the prohibition of their activities or their liquidation due to extremism.

The Committee requests the Government to indicate how the above mentioned sections of the Criminal Code of 2015 are applied in practice, so that it can assess to what extent these provisions are compatible with the present provisions of the Convention. It also requests the Government to provide details of court decisions handed down, the number and nature of sentences applied and the grounds for prosecution.

3. Law on Social Associations The Committee previously requested the Government to clarify the scope of liability of individuals (including officials in state agencies and members of the governing body of a social association) for violation of the provisions of the Law on Social Associations of 31 May 1996, pursuant to section 22 of this Law. It also requested the Government to indicate the applicable sanctions.

The Committee notes the Government’s information that section 489 of the Code of Administrative Offences establishes a penalty of a fine and a warning for breaching the legislation on social association as well as for the management of or participation in the activities of social or religious associations that have not been duly registered.

Article 1(c). Sanctions for violations of labour discipline. The Committee previously noted that, under section 371 of the Criminal Code of 2015, a failure to execute or improper execution by an official of his/her duties as the result of unscrupulous or negligent attitude towards service, if this entails significant violation of the rights and legitimate interests of citizens or organizations, or interests of the society or the State, is punishable by a fine, correctional labour, restriction of freedom or deprivation of liberty. The Committee requested the Government to provide information on the application in practice of this provision.

The Committee notes the Government’s statement that according to the Supreme Court of Kazakhstan, in the first half of 2019, three people were convicted under section 371 of the Criminal Code, among which one was sentenced to restriction of freedom. The Government requests the Government to continue to provide information on the application of section 371 of the Criminal Code, including the nature of the penalties applied, and to indicate the circumstances in which the penalties have been imposed.

Article 1(d). Penalties for participating in strikes. 1. Labour Code. The Committee noted that section 176 of the Labour Code of 2015 defines a strike as illegal “in the period of martial law, emergency or special measures introduced under the law of Kazakhstan on national emergencies; at military units of the armed forces of Kazakhstan, or other military establishments and entities authorized to deal with the national defence, national security, emergency recovery, rescue operations, fire suppression, disaster prevention or response; at special public and law enforcement bodies, at hazardous industrial facilities, at ambulance and first aid stations” and that “persons provoking further strike action recognized as illegal by the court shall be liable under the law of Kazakhstan”. The Committee also noted that section 177 of the Labour Code states that “where a strike has been recognized illegal by the court, the employer may bring disciplinary action against the workers involved in organizing or holding of the strike”. The Committee requested the Government to provide information on the scope of liability provided for under section 176 of the Labour Code, as well as on any sanction that might have been imposed under this provision on persons peacefully participating in a strike defined as illegal.

The Committee notes the Government’s indication in its supplementary report that, under section 176(2) of the Labour Code, strikes are also declared illegal in organizations directly related to ensuring the life of the population that provide energy, heat, water, and gas supply, aviation, rail, road, public and water transportation, communications, and health care, if the minimum list and volume of relevant services, required for the population and determined on the basis of a preliminary agreement of employee representatives with the local executive body, have not been preserved. In addition, the Committee notes section 176(2-1) of the Labour Code, introduced by the Act on amendments and additions to some legislative Acts of the Republic of Kazakhstan on labour issues of 4 May 2020, No. 321-VI, which specifies the cases of recognition of strikes as illegal at hazardous industrial facilities.

Moreover, the Committee observes that section 176 prohibits strikes that have been declared with no account taken of the time frames, procedures and requirements set out by the Labour Law and strikes creating a real risk to human lives and health. The Committee once again requests the Government to indicate the scope of liability for individuals who contravene section 176 of the Labour Code, indicating the applicable sanctions. It also requests the Government to provide information on the application of this section in practice, including any sanction that may have been imposed.

2. Criminal Code. The Committee notes that section 402 of the Criminal Code of 2015 introduces a new offence, pursuant to which an incitement to continue a strike that has been declared illegal by a court is punishable with a fine, correctional work, restriction of freedom or deprivation of liberty. Referring to its comments made in 2017 under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee notes the information provided by the International Trade Union Confederation (ITUC) that individuals have been convicted and sentenced under section 402 of the Criminal Code (2016).

The Committee notes from the information provided by the Government in its latest report on the application of Convention No. 87 that, in accordance with the Act on amendments and additions to some legislative Acts of the Republic of Kazakhstan on labour issues of 4 May 2020, No. 321-VI, the liability for an incitement to participate in illegal strikes was mitigated. In this respect, the Committee notes that although the penal sanctions imposed for violation of section 402 of the Criminal Code have been lowered, they still include correctional work, community service, restriction of freedom or deprivation of liberty, which involve compulsory labour.

Recalling that the exaction of compulsory labour as a sanction imposed for the mere fact of organizing or peacefully participating in strikes is prohibited by the Convention, the Committee hopes that the Government will take the necessary measures to repeal sanctions involving compulsory labour under section 402 of the Criminal Code. It requests the Government to provide information on the progress achieved in this regard. In the meantime, it requests the Government to provide information on the application of section 402 of the Criminal Code in practice, including the number and nature of the penalties applied.

Communication of texts. The Committee requests the Government to supply copies of the latest updated laws governing the press and other media and governing religion.